CANTAT-3 CABLE SYSTEM
INDEFEASIBLE RIGHT OF USE AGREEMENT BETWEEN
TELEGLOBE CANTAT-3 INC.
AND
STARTEC INC.
THIS AGREEMENT, made and entered into as of September 15th, 1997 (the
"Effective Date").
BY AND BETWEEN:
TELEGLOBE CANTAT-3 INC., a corporation incorporated under the laws of
Barbados, having its principal office at 0xx Xxxxx, Xxxxxxxx 0, Xxxxxxxx Xxxx,
(P.O. Box 1210, Bridgetown), Xxxxxxxxx Rock, St. Xxxxxxx, BARBADOS, hereinafter
referred to as "TC-3";
AND:
STARTEC INC., a corporation incorporated under the laws of Maryland, having
its principal office at 10411 Motor City Dr., Xxxxxxxx, Xxxxxxxx 00000, U.S.A.,
hereinafter referred to as the "Grantee".
WHEREAS TC-3 owns capacity on the CANTAT-3 cable system (the "CANTAT-3
System");
WHEREAS TC-3 is entitled to transfer capacity on the CANTAT-3 System on an
indefeasible right of use ("IRU") basis;
WHEREAS the Grantee desires to acquire from TC-3, on an IRU basis, capacity
on the CANTAT-3 System;
NOW, THEREFORE, the Parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions. This Section 1.1 lists all defined terms used in this
Agreement. Capitalized terms used in any provision of this Agreement and not
otherwise defined therein shall have the following meanings, respectively,
unless the context otherwise requires.
(A) "Agreement" shall mean this Agreement and the schedule attached hereto,
as amended from time to time;
(B) "Branching Unit" shall mean a junction and switching point for the
CANTAT-3 System, and includes a housing and any associated plant and
equipment (including any spare plant and equipment);
(C) "Business Day" shall mean any day (except a Saturday, Sunday or other
day on which commercial banks in the United States are authorized by
law to close);
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(D) "CANTAT-3 C&MA" shall mean that certain construction and maintenance
agreement dated October 8, 1992, the purpose of which was to define the
terms and conditions upon which the CANTAT-3 System will be provided,
constructed, and thereafter maintained and operated, as the same may be
amended from time to time; TC-3 shall at any time submit to the
Grantee, upon request, an updated list of all parties to the CANTAT-3
C&MA;
(E) "Dollar" and "dollars" and the symbol "$" shall mean lawful money of
the United States of America;
(F) "Effective Date" shall mean October 1st, 1997. This Agreement shall be
deemed to have taken effect as of the Effective Date, notwithstanding
the formal date of its execution by the Parties;
(G) "Grantee's Share" shall mean the ratio of the Grantee's Capacity to
TC-3's capacity used in the calculation of TC-3's obligations with
respect to the CANTAT-3 System under the CANTAT-3 C&MA;
(H) "Libor" shall mean the London Inter-Bank Offered Rates;
(I) "Maintenance Authority" shall mean the terminal parties who are
responsible for the operation and maintenance of Segment F of the
CANTAT-3 System;
(J) "MIU" shall mean a unit designated as the minimum unit of investment
between System Interfaces of the CANTAT-3 System and shall consist of a
Virtual Container 12 (VC-12), allowing the use of 2,048,000 bits per
second (nominal 2 Mbit/s) digital stream. MIU may be expressed in terms
of whole or half-MIUs.
(K) "Notional Capacity" shall mean the total assigned Capacity in the
CANTAT-3 System which is equivalent to 2,016 half-MIUs;
(L) "Operating and Maintenance Charges" or "O&M Charges" shall mean all
capital costs and expenses reasonably incurred in operating and
maintaining Segment F, including, but not limited to, the cost of
attendance, testing, adjustments, storage of plant and equipment,
repairs (including repairs at sea), cable ships, maintenance and repair
devices that are or may hereafter become available, including standby
costs, reburial and the replacement of plant, tools and test equipment,
customs duties, taxes (except income tax imposed upon the net income)
paid in respect of such facilities, appropriate financial charges
attributable to other parties' share of costs incurred by the
Maintenance Authority at the rate at which the appropriate Maintenance
Authority generally incurred such financial charges, supervision,
overheads as well as costs and expenses reasonably incurred on account
of claims made by or against other persons in respect of such
facilities or any part thereof and damages or compensation payable by
the parties to the
CANTAT-3 C&MA on account of such claims shall be shared by them in the
same proportions as they share the costs of operating and maintaining
Segment F, and including but not limited to the costs, or an
appropriate share thereof, for the purchase, storage and maintenance of
special tools and test equipment for use on board cable ships and which
are required for maintenance and repair of the CANTAT-3 System;
(M) "Parties" shall mean all of the parties hereto collectively; and
"Party" shall mean any one of them;
(N) "Person" shall mean an individual, corporation, company, cooperative,
partnership, trust or unincorporated association and pronouns have a
similarly extended meaning;
(O) "Station Costs" shall mean the costs charged by the terminal parties
for the construction, provision, operation and maintenance of Segments
A and C and paid by TC-3;
(P) "System Interface" shall be the input/output ports on a distribution
frame (excluding the distribution frame itself) which shall terminate
either electrical or optical connections from the CANTAT-3 System.
These terminations shall be in accordance with ITU-T recommendations
X.000, X.000, X.000 and G.957 and shall be of STM-I and or 139,264,000
bit/s capacity. The distribution frame shall be regarded as a system
interface location where the CANTAT-3 System connects with other
transmission facilities or equipment.
The following terms are defined in the Sections indicated below:
TERM SECTION
"CANTAT-3 System" Preamble
"Capacity" 2. !
"Dispute" 15.1
"Grantee" Preamble
"Granting Price" 3.1
"IRU" Preamble
"Losses" 14.1
"Proprietary Information" 16.5
"Representatives" 16.5
"Segments A and C" Schedule A
"Segments A and C Price" 3.2
"Segment F" Schedule A
"TC-3" Preamble
1.2 Gender. Any reference in this Agreement to any gender shall include all
genders and words used herein importing the singular number only shall include
the plural and vice versa.
1.3 Headings. The division of this Agreement into Articles, Sections,
Subsections and other Subdivisions and the insertion of headings are for
convenience of reference only and shall not affect or be utilized in the
construction or interpretation hereof.
1.4 Severability. Any Article, Section, Subsection or other Subdivision of this
Agreement or any other provision of this Agreement which is proven to be
illegal, invalid or unenforceable shall be severed herefrom and shall be
ineffective to the extent of such illegality, invalidity or unenforceability and
shall not affect or impair the remaining provisions hereof, which provisions
shall be severed from any illegal, invalid or unenforceable Article, Section,
Subsection or other subdivision of this Agreement or any other provision of this
Agreement and shall otherwise remain in full force and effect.
1.5 Entire Agreement. This Agreement constitutes the entire agreement by and
between the Parties pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the Parties. Except as provided for herein, this Agreement may be
amended only by an instrument in writing signed by both Parties.
1.6 Governing Law. This Agreement shall be interpreted and construed in
accordance with the laws of Barbados, without giving effect to the laws of such
state governing conflicts of laws.
1.7 Ownership. Nothing in this Agreement shall vary rights of ownership in those
segments of the CANTAT-3 System in which IRUs have been granted to the Grantee.
Ownership of all segments of the CANTAT-3 System shall remain with TC-3 and the
other signatories to the CANTAT-3 C&MA.
ARTICLE 2
GRANTING OF IRU
2.1 Granting. As and from the Effective Date, TC-3 grants to the Grantee, on an
IRU basis, an interest in one (1) whole-MIU in Segment F of the CANTAT-3 System
between Segment A and Segment C as well as an IRU in Segments A and C of the
CANTAT-3 System (all such segments hereinafter defined as the "Capacity") to the
extent required for the use of its capacity in the CANTAT-3 System (exclusive of
any interconnection between cable systems, leases, Droits-de-Passage or other
rearward facilities arrangement for which the Grantee shall be solely
responsible), for providing telecommunications services between points reached
via the United Kingdom on the one hand, and points reached via Canada on the
other hand.
The IRU granted herein does not include the right to use the Capacity for
traffic terminating in Canada, unless otherwise permitted by applicable law.
ARTICLE 3
GRANTING PRICE AND PRICE FOR SEGMENTS A AND C
3.1 Granting Price for the Capacity. The aggregate granting price for the
Capacity, exclusive of the right granted in Segments A and C shall be $252,300
(the "Granting Price"), namely $126,150 per half-MIU.
3.2 Price for Segments A and C. For the right to use that portion of Segments A
and C of the CANTAT-3 System granted to the Grantee, the Grantee shall pay a
lump sum of $3,700 (the "Segments A and C Price").
3.3 Payment of the Granting and Segments A and C Prices. The Grantee hereby
agrees and covenants to pay the Granting Price and the Segments A and C Price by
wire transfer, certified cheque or bank draft in the aggregate lump sum of
$256,000. The Granting and Segments A and C Prices shall be payable by the
Grantee no later than (i) the thirtieth (30th) day following receipt by the
Grantee of an invoice to that effect, or (ii) the Effective Date, whichever
comes last.
ARTICLE 4
PAYMENT OF CHARGES AND EXPENSES
4.1 O&M Charges. The Grantee shall pay the Grantee's Share of O&M Charges,
Station Costs and restoration costs in the manner provided hereafter.
4.2 Restoration Costs. The Granting Price includes the costs of restoration for
the first thirty (30) days of outage on the CANTAT-3 System per calendar year
(regardless of the Effective Date of this Agreement) for the first ten (10)
years of the term of this Agreement. The Grantee shall pay its proportionate
share (as calculated by TC-3) of the cost of any additional restoration required
beyond the first thirty (30) days per year and shall also pay its proportional
share of any and all restoration required after year ten (10) of the term of
this Agreement.
4.3 Invoicing and Payments. From and after the Effective Date, TC-3 shall
submit, or cause to be submitted, to the Grantee, an invoice for costs provided
for hereinabove. Invoices for costs referred to in Section 4.1 shall be
submitted on a quarterly basis in advance. All payments shall be made no later
than the last day of the month immediately following the month the invoice was
submitted in order that the funds are available for use by TC-3 by the end of
said month. Invoices rendered shall contain details to support the amounts
contained therein and shall identify
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O&M Charges, Station Costs as well as restoration costs allocatable to the
Capacity and payable by the Grantee. Invoices shall be paid in the currency in
which the invoice is rendered.
All payments made by the Grantee under this Agreement shall be made by wire
transfer, certified cheque or bank draft and be free and clear of all bank
charges, commissions or other charges.
In the event of non-payment of any sum under this Agreement by the due date, an
interest charge shall be paid on overdue amounts calculated on the day-to-day
balance from such date, but excluding the actual payment date thereof. The
annual rate of interest shall be the higher of (i) sixteen percent (16%) or (ii)
eight (8) percentage points above the ninety (90)-day Libor rate of interest as
published by the Wall Street Journal on the date the xxxx is due to be paid or,
if such is not a Business Day, the next Business Day.
TC-3 may designate, at its sole discretion, any Person for the purpose of
invoicing or receiving payment of all costs charged to the Grantee hereunder
(including the Granting Price and the Segments A and C Price). TC-3 shall notify
in writing the Grantee of the identity of such Person. Notwithstanding such
designation, TC-3 only shall be liable towards the Grantee for any and all
obligations of TC-3 as provided hereunder.
4.4 Disputes. Should any xxxx or part thereof be under dispute as to its
correctness, then interest shall not accrue on the amount of such xxxx provided
always that:
(A) before the payment date, TC-3 (or its designee, as the case
may be) is advised by letter or fax by the Grantee of the
amount in dispute and the nature of that dispute; and
(B) TC-3 (or its designee, as the case may be) shall, if requested
by the Grantee within thirty (30) days of receipt of the xxxx
in dispute, submit a replacement xxxx omitting the amount in
dispute, and such replacement xxxx shall become due for
payment on the date the disputed xxxx was due. The amount in
dispute shall be investigated by the Parties in good faith
within a thirty (30)-day period and if the amount in dispute
or part of it is found to be correct, any necessary xxxx with
respect to such amount or part of it shall be raised and paid.
Notwithstanding the foregoing, if on investigation of the
amount in dispute or part thereof such amount is found to be
correct, then the Grantee shall pay interest at the rate
determined hereabove on the unpaid amount or part of it which
is found to be correct from the day after the due date for
payment of the original xxxx in dispute up to and including
the date the outstanding payment is received by TC-3 (or its
designee, as the case maybe).
4.5 Adjustments. In the case of invoices containing any costs billed on
preliminary billing basis, appropriate adjustments will be made in subsequent
invoices promptly after actual costs involved are determined to insure that the
Grantee bears a proper share of the costs as provided under this Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE GRANTEE
5.1 Representations and Warranties. The Grantee represents and warrants to TC-3
that the Grantee has obtained all relevant telecommunications licenses necessary
for the acquisition of the Capacity, the execution and delivery of and the
performance of its obligations under this Agreement and shall use all reasonable
efforts to have continued in effect such exemptions, approvals, consents,
authorizations, licenses and permits as long as it shall have obligations under
this Agreement.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF TC-3
6. I Representations and Warranties. TC-3 represents and warrants to the Grantee
that it is authorized under the CANTAT-3 C&MA to assign interests in the
capacity as contemplated hereunder.
6.2 No representation on the Capacity. Except as expressly set forth in this
Agreement, TC-3 has not made or shall not be deemed to have made any
representations or warranties whatsoever with respect to the Capacity. TC-3
expressly disclaims with respect to the Grantee and the Grantee hereby expressly
waives, releases and renounces, all warranties, obligations and liabilities of
TC-3 and all rights, claims and remedies against TC-3, express or implied,
arising by law or otherwise, with respect to any failure, delay in installation,
cancellation of, non-conformance, temporary or permanent failure of or defect in
the CANTAT-3 System or the Capacity, as the case may be, whatsoever shall have
been the cause and however long it shall have lasted (whether or not TC-3 has
been advised of the possibility of such loss or damage arising). Without
limiting the generality of the foregoing, the Grantee acknowledges and agrees
that the Capacity is being assigned on an "as is, where is" basis.
ARTICLE 7
COVENANTS OF THE GRANTEE
7.1 Covenants of the Grantee. During the term of this Agreement, the Grantee
shall:
(A) pay to TC-3 (or its designee, as may be notified in writing to
the Grantee, as the case may be) when they become due all
amounts payable under this Agreement and otherwise comply with
all other provisions of this Agreement;
(B) maintain, at its own expense, all appropriate insurance policy
against all risks associated with the Capacity as reasonably
deemed necessary by the Grantee;
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(C) undertake to keep the Capacity free of liens, charges and
other encumbrances (including any inchoate liens or floating
charges) and shall reimburse TC-3 (or its designee, as the
case may be), and in the event of accidental breach, to take
all steps required to discharge such liens, charges and other
encumbrances;
(D) not use the Capacity for any illegal, unlawful, fraudulent or
unauthorized purposes and, without limiting the generality of
the foregoing, use the Capacity, at all time, in a manner
consistent with the applicable authorization, licenses and
permits for the landing, construction and operation of the
CANTAT-3 System;
(E) use the Capacity in such a way as to avoid degrading the
overall performance of the CANTAT-3 System or causing
interruptions of, or interference with, impairment or
degradation of the use of any other capacity in the CANTAT-3
System. If, after notification by TC-3, the Grantee does not
take immediate and effective action to comply with its
obligations, TC-3 may take reasonable action required to
protect the other capacity in the CANTAT-3 System up to and
including the interruption of the Capacity responsible for the
interruption, interference, impairment or degradation. The
Grantee shall bear the total cost of any protective measures
reasonably required by TC-3 to be installed on the CANTAT-3
System resulting from the use of the CANTAT-3 System by the
Grantee or any subgrantee, lessee or assignee of the Grantee
or any customer of either the Grantee or any subgrantee,
lessee or assignee of the Grantee;
(F) upon at least a 24-hour prior notice or, at any time, if the
situation or circumstance so justify, make available to TC-3
the Capacity for such test and adjustment as may be necessary
for the Capacity to be maintained in efficient working order.
ARTICLE 8
COVENANTS OF TC-3
8.1 Books and Records. TC-3 shall keep and maintain such books, records,
vouchers and accounts of all costs that it receives from the Maintenance
Authority with respect to the maintenance, operation and restoration of the
CANTAT-3 System as may be appropriate to support the billing of any O&M Charges,
Station Costs or restoration costs by TC-3 and such books that relates to the
running charges and restoration costs shall at all reasonable times be made
available for inspection by the Grantee for a period of two (2) years from the
date of billing. At Grantee's request and at Grantee's sole cost and expense,
TC-3 will request an audit under the CANTAT-3 C&MA to the extent that it has the
right to do so.
8.2 Sharing of Liquidation Proceeds and Costs. In the event of liquidation of
Segments A and C or any part thereof and/or Segment F or any part thereof by
sale or other disposition, TC-3 shall share with the Grantee any proceeds or
costs of such liquidation, sale or disposition received or incurred by TC-3
including, without limitation, any costs related to the removal of
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such Segments A and C and/or Segment F. Such proceeds or costs shall benefit or
be incurred by the Grantee in accordance with the Grantee's Share of such
proceeds or costs.
8.3 Maintenance of the Capacity. TC-3 agrees to act reasonably in the
performance of its obligations as a party to the CANTAT-3 C&MA.
8.4 Provision of Transit Facilities. TC-3 shall use all reasonable efforts to
provide suitable digital transit facilities as and when required for use in
connection with circuits in the CANTAT-3 System so as to provide through
circuits between points reached via Segments A and C.
ARTICLE 9
INTELLECTUAL PROPERTY RIGHTS
9.1 No License. No license under patents is granted by TC-3 or shall be implied
or arise by estoppel in favour of the Grantee with respect to any apparatus,
system or method used by the Grantee in connection with the use of the MIUs
granted to the Grantee under this Agreement.
9.2 Specific Indemnification. With respect to claims of patent infringement made
by third Persons, the Grantee will save TC-3 and the other signatories to the
CANTAT-3 C&MA harmless against claims arising out of or based on the use by the
Grantee, in combination or in connection with the Capacity, any apparatus,
system or method provided by the Grantee, any subgrantee or lessee of the
Grantee or any customer of the Grantee, of such subgrantee or of such lessee.
ARTICLE 10
RECONFIGURATION OF CAPACITY
10.1 Reduction in the Capacity. In the event that the total number of MIUs on
Segment F is reduced below the Notional Capacity, as a result of physical
deterioration, or for any other reason, during the term of this Agreement, TC-3
shall give the Grantee written notice of said decrease and the MIUs in which the
Grantee has been granted an IRU hereunder shall be reduced in the same
proportion as the total number of MIUs assigned to TC-3 in Segment F is reduced,
except that such reductions shall not extend to fractions of half-MIUs.
10.2 Adjustment in O&M and Other Charges. If the number of MIUs on Segment F is
decreased as provided in Section 10.1 and that operating and maintenance charges
related thereto are reduced proportionally, the Grantee's payments with respect
to operating and maintenance charges for the IRU granted under this Agreement
shall be adjusted proportionally to such reduction.
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10.3 Increase in Communication Capability.
(A) The communication capability of the Capacity used by the
Grantee on Segment F may be increased, subject to prior notice
to TC-3, by the use of equipment which will make more
efficient use of such MIUs, provided that such use of the
Capacity does not cause an interruption of or interference in
the CANTAT-3 System or other systems interconnecting with the
CANTAT-3 System.
(B) The Grantee shall not be entitled to share in any increase in
capacity or be entitled to credits or reduction in the sums
paid for the Capacity in the event that the Notional Capacity
is increased beyond 2,016 half-MIUs.
ARTICLE 11
TERM
11.1 Term. This Agreement shall continue in effect for the initial term up to
the end of the expected useful life of the CANTAT-3 System at 23:59 Universal
Time Coordinated, on October 8th, 2019 unless the CANTAT-3 System is taken out
of service earlier, in which case this Agreement will terminate on the same date
as that of the CANTAT-3 System. TC-3 shall give the Grantee prompt notice of the
taking out of service of the CANTAT-3 System. In the event that the CANTAT-3
System is extended tacitly beyond its initial term as stated above, this
Agreement will continue in effect tacitly during such extension under the same
terms and conditions.
Notwithstanding the termination of this Agreement, all payment obligations of
the Grantee for amounts still due or payable under this Agreement for the period
ending at the date of termination shall survive until full payment and the
Grantee shall be liable for any costs and shall benefit from any proceeds under
Section 8.2 hereof incurred or received, as the case may be, in the case of
liquidation, sale or disposition occurring within two (2) years after the
termination date.
ARTICLE 12
EVENT OF DEFAULT
12.1 Event of Default. The occurrence of any one or more of the following events
shall constitute an Event of Default under this Agreement:
(A) If the Grantee fails to make the payment of any amount due to
TC-3 under the provisions of this Agreement, when the same
becomes due and payable as herein provided and such default
has not been cured within ten (10) days after receipt by the
Grantee of a notice to that effect;
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(B) If the Grantee fails to duly observe, perform and discharge the
covenants, conditions and obligations on its part to be
observed, performed or discharged hereunder (other than the
default of payment of amounts under any provisions of this
Agreement which is subject to Subsection 12.1(a)) and such
default has not been cured within twenty (20) days after receipt
by the Grantee of a notice from TC-3;
(C) If any representation or warranty made herein shall prove at any
time to be materially incorrect;
(D) If the Grantee has defaulted on its payment obligations to TC-3
or any of its affiliates under any telecommunications service
agreements including or incorporating the provision of CANTAT-3
capacity, or if the Grantee becomes insolvent or bankrupt or
ceases paying its debts generally as they mature or has a
receiver, administrative receiver or manager appointed over the
whole or any part of its assets or goes into liquidation
(whether compulsorily or voluntarily), otherwise than for the
purpose of an amalgamation or reconstruction, or makes any
arrangements with its creditors or has any form of execution or
distress levied upon its assets or ceases to carry on its
business.
ARTICLE 13
TERMINATION
13.1 Termination Upon Default. Upon the occurrence of an Event of Default, TC-3
shall have the right to terminate this Agreement immediately, and, in addition
to any other remedies available hereunder, at law or in equity, shall be
entitled to repossess the Capacity without any other notice or action, with or
without legal process. In addition, upon occurrence of an Event of Default, TC-3
may temporarily discontinue use of the Capacity without incurring any liability
to the Grantee, its subgrantees, its lessees or its customers, until the default
is duly cured by the Grantee to the complete satisfaction of TC~3.
13.2 Termination After Initial Term. In the event that this Agreement is
continued beyond the expected useful life of the CANTAT-3 System in conformity
with Section 11.1, any Party may thereafter terminate this Agreement by giving
the other Party a notice of not less than one ( 1 ) year.
13.3 Other Remedies. Termination of this Agreement by the Party not in default
in accordance with the terms hereof shall be without prejudice to any other
rights or remedies such Party shall have hereunder, at law or in equity.
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ARTICLE 14
GENERAL INDEMNIFICATION
14.1 General Indemnification. The Grantee shall indemnify and save TC-3 harmless
from and against any direct or consequential claims, demands, actions, causes of
action, damages, losses (which shall include any reduction in value),
liabilities, costs or expenses (including, without limitation, interest,
penalties and reasonable attorneys' fees and disbursements) (collectively, the
"Losses") which may be made against TC-3 or which TC-3 may suffer or incur as a
result of, arising out of or relating to:
(A) any non-performance of or non-compliance with any covenant,
agreement or obligation of the Grantee under or pursuant to
this Agreement;
(B) any incorrectness in, or breach of, any representation or
warranty made by the Grantee;
(C) any action, suit, claim, trial, demand, investigation,
arbitration or other proceeding by any Person containing
allegations which, if true, would constitute an event
described in Subsection 14. l(a) or 14.1(b).
ARTICLE 15
DISPUTE RESOLUTION
15.1 Arbitration. Any difference, controversy or claim arising out of or
relating to this Agreement, its interpretation or performance, shall be
considered a "Dispute". Any Dispute shall be subject to binding arbitration as
provided hereafter.
(A) The aggrieved Party shall diligently notify the other Party of
the occurrence of a Dispute. The notification shall be deemed
diligently made if communicated to the other Party within five
(5) Business Days of the knowledge of the occurrence of the
Dispute.
(B) Within ten (10) Business Days following such notification,
each Party shall prepare and disclose to the other Party a
brief on its position and within fifteen (15) days thereafter
the parties shall prepare a common brief which shall contain
all points of Agreement and all points of disagreement in
relation to the Dispute.
(C) Notwithstanding Subsection 15.1(b) above, if no resolution of
the Dispute has occurred thirty (30) days after the date on
which a Party has submitted the Dispute to its Chief Executive
Officer or a Person appointed by him, then the Dispute shall
be submitted for resolution by binding arbitration under the
Rules of Conciliation
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and Arbitration of the International Chamber of Commerce in
effect on the date the arbitration is submitted to the
tribunal of arbitration. In such event:
(I) a sole arbitrator shall be appointed, unless the parties
agree in a particular case within thirty (30) days of the
submission of the Dispute to arbitration that the tribunal
should consist of more than one arbitrator. Such
arbitrator(s) shall be knowledgeable in the field of law
involved;
(II) the place of arbitration shall be Washington, D.C. and the
arbitration shall be conducted in English;
(III) responsibility for paying the costs of the arbitration,
including the costs incurred by the parties themselves in
preparing and presenting their cases, shall be apportioned
by the tribunal of arbitration;
(IV) the award shall be rendered in the English language and
shall state the reasons upon which it is based;
(V) the award of the tribunal of arbitration may be entered
and enforced as a judgment against a Party in any court of
competent jurisdiction or application may be made to such
court for a judicial acceptance of the award and an order
of enforcement, as the case may be.
(D) Nothing in the foregoing shall prevent a Party from initiating
such protective measure proceedings as are necessary to
protect any arm's length third-party rights.
(E) The fact that a dispute is brought to arbitration does not
relieve either Party from its obligation to fulfill its other
covenants or agreements as provided by this Agreement which
are not affected by the Dispute.
ARTICLE 16
MISCELLANEOUS
16.1 Assignment. Neither this Agreement nor any rights, remedies, liabilities or
obligations arising under it or by reason of it shall be assignable by the
Grantee without the prior written consent of TC-3, which consent shall not be
unreasonably withheld. Subject thereto, this Agreement shall inure to the
benefit of and be binding on the Parties and their respective successors and
permitted assigns.
16.2 Further Assurances. The Parties shall, with reasonable diligence, do all
things and provide all reasonable assurances as may be required to consummate
the transactions contemplated by this Agreement, and each Party shall provide
further documents or instruments
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required by the other Party as may be reasonably necessary or desirable to
effect the purpose of this Agreement.
16.3 Notices. Any notice, consent, request, authorization, permission, direction
or other communication required or permitted to be given hereunder shall be in
writing and shall be delivered either by personal delivery or by telex,
telecopier or similar telecommunications device, return receipt requested, and
addressed as follows:
(A) in the case of TC-3:
TELEGLOBE CANTAT-3 INC.
0xx Xxxxx, Xxxxxxxx 0, Xxxxxxxx Xxxx
Xxxxxxxxx Rock, St. Xxxxxxx, BARBADOS
Attention: Xx. X. Xxxx Xxxxxxxx, Vice President
and General Manager
Telephone: 000 000 0000
Telecopier: 000 000 0000
(B) in the case of the Grantee:
STARTEC INC.
10411 Motor City Dr.
Xxxxxxxx, Xxxxxxxx 00000, U.S.A.,
Attention: Mr. Ram Xxxxxxx, President
Telephone: 000 000 0000
Telecopier: 000 000 0000
Any notice, consent, request, authorization, permission, direction or other
communication delivered as aforesaid shall be deemed to have been effectively
received, if sent by telex, telecopier or similar telecommunication device, on
the Business Day next following transmission thereof, or, if personally
delivered, on the date of such delivery, provided, however, that if such date is
not a Business Day then it shall be deemed to have been received on the Business
Day next following such delivery. An address may be modified by written notice
delivered as aforesaid.
16.4 No Partnership. The relationship between TC-3 and the Grantee under this
Agreement shall not be that of partners or joint venturers and nothing herein
contained shall be deemed to constitute a partnership or joint venture between
them and the rights and obligations of the Parties shall be limited to the
express provisions of this Agreement.
16.5 Confidentiality and Public Announcement. It is expected that the Parties
may disclose to each other proprietary or confidential technical, financial and
business information ("Proprietary Information"). Except as necessary to perform
its obligations under this Agreement, the receiving Party shall not make any use
of Proprietary Information for its own benefit or for the benefit of any other
Person, and, except with the prior written consent of the
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disclosing Party or as otherwise specifically provided herein, the receiving
Party will not, during and for a period of three (3) years after the termination
of this Agreement, duplicate, use or disclose any Proprietary Information to any
Person.
The receiving Party shall not disclose all or any part of the disclosing Party's
Proprietary Information to any affiliates, agents, officers, directors,
employees or representatives (collectively, "Representatives") of the receiving
Party, except on a need to know basis. Such Representatives shall be informed of
the confidential and proprietary nature of the Proprietary Information. Each
Party shall maintain the other Party's Proprietary Information with at least the
same degree of care each Party uses to maintain its own proprietary information.
The receiving Party shall immediately advise the disclosing Party in writing of
any misappropriation or misuse by any Person of the disclosing Party's
Proprietary Information of which the receiving Party is aware.
All Proprietary Information in whatever form shall be promptly returned by the
receiving Party to the disclosing Party upon written request by the disclosing
Party for any reason or upon termination of this Agreement.
Each receiving Party acknowledges that the Proprietary Information of the
disclosing Party is central to the disclosing Party's business and was developed
by or for the disclosing Party at a significant cost. Each receiving Party
further acknowledges that damages would not be an adequate remedy for any breach
of this Agreement by the receiving Party or its Representatives and that the
disclosing Party may obtain injunctive or other equitable relief to remedy or
prevent any breach or threatened breach of this Agreement by the receiving Party
or any of its Representatives. Such remedy shall not be deemed to be the
exclusive remedy for any such breach of this Section 16.5, but shall be in
addition to all other remedies available at law or in equity to the disclosing
Party.
None of the Parties shall disclose or make any public announcement of the
existence of this Agreement, the transaction contemplated hereby or the contents
hereof without in each case the prior written consent of the other, unless such
disclosure is required by law and then only after prior notice to the other
Party.
16.6 Waiver. No waiver of any right under this Agreement shall be deemed
effective unless contained in writing signed by the Party charged with such
waiver, and no waiver of any right arising from any breach or failure to perform
shall be deemed to be a waiver of any future such right or any other right
arising under this Agreement.
16.7 Force Majeure. Neither Party shall be responsible for failures to perform
or delays in performing its obligations due to causes beyond its reasonable
control and without its fault or negligence.
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IN WITNESS WHEREOF the Parties have signed this Agreement as of the date first
above written.
TELEGLOBE CANTAT-3 INC. STARTEC INC.
Per: Per:
Name: V. Xxxx Xxxxxxxx Name:
Title: Vice President and General Manager Title:
Place: St. Xxxxxxx, Barbados Place:
Date: Date: Sept./12/1997
SCHEDULE A
DESCRIPTION OF THE CANTAT-3 SYSTEM
Segment F: shall mean the whole of the submarine cable provided between and
among, and including the System Interface at the following cable
stations:
Segment A: A cable station at Xxxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxx;
Segment B: A cable station at Vestmannaeyjar, Iceland;
Segment B 1: A cable station at Tjornuvik, Faroe Island;
Segment C: A cable station at Redcar, United Kingdom;
Segment D: A cable station at Blaabjerg, Denmark
Segment E: A cable station at Sylt, Germany;
Segments X, X, X 0, X, X and E shall each consist of an
appropriate share of land, civil work, equipment and buildings at
the specified locations for the cable landing and for the cable
right-of-way and ducts between a cable station and its respective
landing point, and an appropriate share of common services and
equipment other than services and equipment associated solely
with the CANTAT-3 System, at each of those locations together
with equipment in each of those cable stations solely associated
with the CANTAT-3 System, but which is not a part of Segment F,
consisting of Subsegments X0, X0, X0X, X0X, X0X, X0, X0, F6 and
F7.
Subsegment F1: That part of Segment F between and including the System Interface
at the cable station in Canada, Segment A, and BU1, including a
three-eight (3/8) portion of BU 1;
Subsegment F2: That part of Segment F between BU 1 and the System Interface at
the cable station in Iceland, Segment B, including a one-quarter
(1/4) portion of BU1;
Subsegment F3A:That part of Segment F between BU1 and BU1A including a
three-eight (3/8) portion of BU 1;
Subsegment F3B: That part of Segment F between BU1A and System Interface at the
cable station in the Faroe Islands B 1, including the whole of
BU 1A.
Subsegment F3C: That part of Segment F between BU1A and BU2 including a
three-tenths (3/10) portion of BU2.
Subsegment F4: That part of Segment F between BU2 and the System Interface of
the cable station in the United Kingdom, Segment C, including a
three-tenths (3/10) portion of BU2;
Subsegment F5: That partof Segment F between BU2 and BU3 including a two-fifths
(2/5) portion of BU2 and a two-fifths (2/5) portion of BU3;
Subsegment F6: That part of Segment F between BU3 and the System Interface of
the cable station in Denmark, Segment D,including a three-tenths
(3/10) portion of BU3;
Subsegment F7: That part of Segment F between BU3 and the System Interface of
the cable station in Germany, Segment E,including a three-tenths
(3/10) portion of BU3.
Segment F shall also include:
- all transmission equipment, power feeding equipment and special
test equipment directly associated with the submersible plant;
- the transmission cable equipped with appropriate repeaters and
joint housings between the cable stations and the Branching Units
and between the Branching Units themselves; and
- the sea earth cable and electrode system and/or the land earth
system, or an appropriate share thereof, associated with the
CANTAT-3 System power feeding equipment.
Subsegment F3B: That part of Segment F between BU1A and System Interface at the
cable station in the Faroe Islands B 1, including the whole of
BU1A.
Subsegment F3C: That part of Segment F between BU1A and BU2 including a
three-tenths (3/10) portion of BU2.
Subsegment F4: That part of Segment F between BU2 and the System Interface of
the cable station in the United Kingdom, Segment C, including a
three-tenths (3/10) portion of BU2;
Subsegment F5: That part of Segment F between BU2 and BU3 including a
two-fifths (2/5) portion of BU2 and a two-fifths (2/5) portion
of BU3;
Subsegment F6: That part of Segment F between BU3 and the System Interface of
the cable station in Denmark, Segment D, including a
three-tenths (3/10) portion of BU3;
Subsegment F7: That part of Segment F between BU3 and the System Interface of
the cable station in Germany, Segment E, including a
three-tenths (3/10) portion of BU3.
Segment F shall also include:
- all transmission equipment, power feeding equipment and
special test equipment directly associated with the
submersible plant;
- the transmission cable equipped with appropriate repeaters
and joint housings between the cable stations and the
Branching Units and between the Branching Units themselves;
and
- the sea earth cable and electrode system and/or the land
earth system, or an appropriate share thereof, associated
with the CANTAT-3 System power feeding equipment.
